State v. Chancey

The opinion of the Court was delivered by Mr. Justice Cothran. Indictment containing two counts: (1) A sale of whiskey; (2) storing and keeping in possession whiskey for unlawful use. Verdict “guilty”: sentence, imprisonment in the penitentiary for 15 months, 5 of which were suspended during good behavior. We shall consider only the exception which assigns error to the presiding Judge in not fully charging the latw of alibi. Speaking for himself alone, the writer of this opinion has an abiding confidence that sooner or later the Court will recede from the oft-expressed statement that alibi is an affirmative defense, and that the preponderance of the evidence must be established by the defendant upon this defense. See concurring opinion in the case of State v. DesChamps, 134 S. C., 179; 131 S. E., 420. Bowing to the present attitude of the Court, I am convinced that the presiding Judge did not follow the law as laid down in the case of State v. Stokes, 133 S. C., 130 S. E., 337, in that he should have charged,' along with the statement referred to, in the language of the Stokes case: “But this rule is subordinate to the cardinal rule in criminal cases that ifie burden is unshifting in the part of the State to establish every element of the crime charged beyond a reasonable doubt to warrant a conviction * * * and, if [307] the jury entertain a reasonable doubt on the whole case as to whether the defendant has established his alibi, the defendant is entitled to it.” The judgment of this Court is that the judgment of the Circuit Court be reversed, and that the case be remanded to that Court for a new trial. Messrs. Justices Watts, BlFasl and Stabler concur. Mr. Chief Justice Gary did not participate.